Dilipkumar Shrivastava Vs Sudeep Construction Pvt Ltd

Prabhat Kumar, Member (Technical)

This Company Petition TCP 33/2010 has been filed by M/s Kalpdrum Enterprises in terms of Section 111A of the Companies Act, 1956 seeking various reliefs on the ground that its shareholding in the Company M/s Sudeep Constructions Private Limited (“Respondent No. 1”) have been transferred by Respondent No. 5 i.e. Sh. Shyam Kumar Srivastava under his forged signature sometime in 2002.

The Respondent no. 1 Company was incorporated on 28th may 1979 under the name and style of Sudeep Architect and Construction Private Limited as a Private Limited Company limited by shares under the provisions of Companies Act, 1956 ( hereinafter referred to as "the said Act"). The Petitioner no. 1 i.e Sh. Dilip Kumar Shrivastava and Respondent no. 5 were the first Directors of the Company. The Authorised Capital of the Company at the time of incorporation was Rs. 1,00,000/- divided into 1,000 shares of Rs. 100/- each.

On 1 January 1982, the name of the Company was changed to Sudeep Construction Private Limited (hereinafter referred to as "the said Company"). The Registered Office of the said Company is at Plot no. 5, Village Ali yali, Taluka Palghar, Thane 401404. The said Company is engaged in the business of dealing in Real Estate and Property development. The main objects for which the Company was incorporated will appear from it's Memorandum of Association. As per the last Balance Sheet for the year ended 31 March 2009 available with the Petitioner, the Authorised Share Capital of the Company is Rs. 5,00,000/- divided into 5,000 shares of Rs. 100/- each. The issued, subscribed and paid-up share capital of the said Company is Rs. 2,50,000/- divided into 2,500 shares of Rs. 100/- each.

It is the case of the Petitioner that the said Company was originally formed by the Petitioner and Respondent no.5 in the year 1979. At the time of formation of the said Company, the Petitioners were shareholder in the said Company. The Petitioners do not have a copy of the relevant Return of Allotments for the said year since all the records are with the said Company. 4.1. The Company has filed its Annual Returns for the year ended 2001. In the said Annual Return, the Petitioners are shown as shareholders, holding 490 shares and 500 shares respectively. The Petitioner no. 1 is also shown as a Director.

4.2. On 18th December 2002, an Annual Return for the year ended 2002 was filed by the Company wherein Respondent 3 (Sh. Pramodkumar Shrivastava) , Respondent 4 (Sh. Michael Victor) and Respondent 9 (Sh. Vineet P. Shrivastava) are shown as Directors of the said Company. The Respondent nos. 3 and Respondent 8 (Smt. Shakun P. Shrivastava) are shown as shareholders of the said Company. The names of the Petitioners are not shown in the Annual Returns. The Petitioners names have been transferred and accordingly their names have been deleted from the Share Register of the Company.

4.3. It is somewhere in 2002 when without the authority, knowledge and consent and approval of the Petitioners, the Respondent nos 3,4, 8 and 9 transferred the shares of the Petitioners in their names and submitted bogus resignation in the said Company. The Annual Returns of the said Company filed for the year ended 2002 shows Respondent no. 3 holding 490 shares whereas Respondent no. 8 showing 510 shares. Apparently, the Petitioners have been divested of their shareholding under forged and fabricated documents in the year 2002 or there about.

4.4. In the records as shown in the last Annual Returns for the year ended 2009, the Petitioners states that the share holdings now stand transferred to Respondent No. 3 and 8 herein, which are currently holding 1,240 and 1,260 numbers of shares respectively as against the original holding of the Petitioners of 490 and 500 shares respectively.

4.5. The Petitioners were required to stay at Goa for a long period on account personal purposes. The Petitioner no.1 had executed a Power of Attorney in favour of Respondent nis. 3 to take care of day to day business and to deal and/or develop the real estate business including dealing with the properties of the said Company. Due to this, the Petitioners were not aware of the day to day management and affairs that were being conducted in the said Company and the entire affairs and management was conducted by Respondent nos, 3.

4.6. In the circumstances the Petitioner claims entitlement to file the present Petition since he is challenging such divestment in the year 2002 as such divestment was never supported by consideration and was based on forged and fabricated document prepared by the Respondent No. 3 and 8 who were then handling the management of the said company.

4.7. It is the contention of the Petitioner no. 1 that even the resignation prepared by the Respondent no. 3 and 8 in 2001 or thereabout was fraudulent and such resignation is not supported by Form No.32. The Petitioners are challenging in this Petition the said purported resignation as well and claims entitlement to be a Director in the said Company.

4.8. The Petitioners say this fraud has came to their notice recently and therefore it has also become a subject matter of a complaint and therefore the Petitioner no. 1 filed a Criminal Complaint in the Metropolitan Magistrate at CBD Belapur against the Respondent Nos. 3, 4 and 8 for various offence under Section 465, 466, 467, 468, 471, 420, 409 r/w 34 of I.P.C. the said complaint was filed on 26 September 2007. In the said complaint an order has been passed under Section 156 (3) of the Court of Criminal procedure 1973 for investigating of records. A copy of the complaint is hereto annexed and marked as Annexure A 7. The said Criminal Complaint is pending and not yet disposed of.

4.9. In this circumstances by reason of fraud played upon the Petitioner by the Respondent resulting in the divestment of the shareholding of the Petitioner, and for this reason such divestment is under challenge in this Petition. The Petitioners have submitted that they have right and otherwise eligible to apply for reliefs under Section 397,398 and 399 of the Companies Act. In any case the Respondent can not take advantages of the wrong and preclude or denied Petitioner's right to file the present Petition.

4.10. The Petitioners have submitted that the conduct of Respondent nos. 2,3 and 4 in the management of the affairs of the Company has been extremely harsh and oppressive to the Petitioners. The Petitioners are compelled to subject themselves to conduct on the part of the Respondents which is clearly lacking any probity. The Respondent nos. 2 (Sh. Ramvinod Shivsevak Jha) , Respondent 3 and Respondent 4 have completely ousted the Petitioners from the management and affairs of the said Company. By the aforesaid acts of fraudulent transfer of shares and tendering of resignation letter of Petitioner no.1, Respondent nos. 2 to 4 have brought a situation where the Company's operation and business is carried on for the sole benefit of Respondent no. 3 and his family members

4.11. In the circumstances since the Petitioners are claiming entitlement to the original holding 490 and 500 shares respectively which has increased proportionately to increment in capital, the Petitioners should be now entitled to claim the correspondingly increase of the share holding in the said company according to increase in the Capital from time to time. The Petitioners were holding 95% and therefore claims that percentage of the current equity ought to be allotted to him since his original equity has been fraudulently transferred.

4.12. The Petitioner submits that the Respondent nos, 2,3,4,8 and 9 have mismanaged and played a fraud through the said Company by gradually increasing the shares of the said Company and allotting to the Respondent nos. 2,3 and 8. The Respondent nos. 2,3,4,8 and 9 have not offered the additional allotment of shares to the Petitioners willfully thereby trying to capture the total management of the said Company.

4.13. In the facts and circumstances, the Petitioners have contended that this Board (Now Tribunal) be pleased to pass appropriate Orders under Sections 111 and 113 of the Companies Act, 1956 for appropriate management of the said Company and for that purpose to appoint such appropriate and fit person as this Board/Tribunal may deem fit and proper as Administrator, and/or appoint an Independent Committee of management for managing the affairs of the Company for such time and on such conditions and to appoint auditors and/or Company Secretary for carrying out audit reports pertaining to the fraudulent transfer of shares which were held by petitioner as this Tribunal may deem fit and for this purpose order the respondent no. 2 and 3 being the existing directors to make a full and free complete disclosure of records of the said Company with regard to the affairs of the said Company as well as in respect of the documents sought for by the Petitioner, inter alia being;

4.14. The Petitioners have further submitted that the Respondent nos. Respondent 2, Respondent 3, Respondent 4, Respondent 7 (Sh. Sandeep Shyam Kumar Shrivastava) and Respondent 9 have filed false, incorrect and fabricated records in respect of the said Company with the Registrar of Companies. Hence, the Petitioners are also entitled to a perpetual order of injunction restraining Respondent nos. 2, Respondent 3, Respondent 4, Respondent 7 and Respondent 9 from in any manner whatsoever making any false and incorrect statutory records in respect of the said Company with the Registrar of Companies and/or addressing any correspondence whatsoever for and on behalf of the said Company. The Petitioners are also entitled to a declaration that the statutory records filed by the Respondent nos. 2,3,4,7 and 9 in respect of the said Company with the Registrar of Companies, are non-est, null, and void ab-initio and no effect whatsoever. Presently, the existing Directors are only Respondent nos. 2 and 3.

4.15. The Petitioners have contended that the Respondents be thus directed to disclose further documents including books of accounts, company records, minutes books, resolutions passed for transfer of plots, share transfer book, share certificate book, of the said Company and the Petitioner after examination thereof, crave leave to amend, alter, or modify this Petition, if necessary.

Respondent No. 5 has filed the reply stating that there have been several instances by the Petitioner has engaged himself in forgery, defalcation and misdeeds with respect to the properties of the Company, including Group Companies where the Petitioner was at sometime involved. The Respondent has stated that the first Respondent company's name was Sudeep Architects Pvt. Ltd. which was allegedly converted / changed by the Petitioner without the knowledge and the consent of the Respondent. In this behalf, Complaints have been filed before the Additional Chief Metropolitan Magistrate Court, at Girgaon, Mumbai, wherein the defalcation, misdeeds etc. of the 1st Petitioner are more particularly highlighted. The 1 Petitioner had applied for anticipatory bail. The same came to be rejected by an Order dated 20th April, 2011 passed by the Special Judge, Session Court, Mumbai. A further Application for anticipatory bail was made by the 1st Petitioner before the Bombay High Court, which was also dismissed by an Order dated 13th May, 2011.

5.1. The Petitioners have resigned from the 1 Respondent Company in or about 2001, and at least from the year 2002 the Petitioners ceased to be shareholders as reflected in the Annual Return of the 1 Respondent Company which is a public record.

5.2. The 1st Petitioner has himself disowned any connection with Companies of SHRIVASTAVA GROUP at least since 2004. This is apparent from the letter dated 07th July, 2004 written by the 1st Petitioner to the State Bank of India wherein he has admitted that Mr. Shyamkumar Shrivastava as the Chairman of all Companies and the Shrivastava Group has taken over all assets and liabilities.

5.3. If the Petitioners were Directors or a shareholders, as claimed in the petition, they ought to have known or enquired about the holding of meetings of the Board of Directors or the Annual General Meetings and/or would have enquired as to why no minutes or notices of meetings were being sent to them if their case is to be believed. In any event, the failure of the Petitioner to attend three consecutive meetings of the Board would itself result in automatic vacation of the Office of the Directors concerned. Admittedly, they have not attended meetings nor sought leave of absence.

5.4. There is no explanation at all by the Petitioner as to how and when he learnt that his shares were allegedly transferred nor has he explained as to when or how he learnt that he did not posses the original share certificates.

5.5. The Petitioners appears to have addressed a letter dated 02nd June, 2005 to the Assistant Registrar of Companies wherein he alleges (though the allegations are denied) that on 31st May, 2005 he had inspected the records of the Registrar of Companies and learnt that "Mr. Pramod Shrivastava has filed forged documents in respect of the said Company and with the help of the forged documents managed to change the name of Board of Directors". Despite the aforesaid, the Petition is filed after a lapse of more than 5 years. This itself shows that the present Petition suffers from gross delay and laches and ought to be dismissed on this ground alone.

5.6. With reference to the Petition, it is true that on 31st March, 2002 in the return of the allotment the shares of the Petitioners have been transferred and the names of the Petitioners deleted from the share register of the Company, however it is denied that the Petitioners have been divested of all their shareholding under forged and fabricated document.

5.7. With reference to para 14, it is denied that the Petitioners became aware in the year 2007 that they were deprived of their status as shareholders and directorship. Even if there is any breach of trust or any hijacking of the Company and assuming the Petitioners were 99% shareholders of the Company, it is unbelievable that a minority 1% shareholder could have hijacked the Company as falsely claimed by the Petitioners.

5.8. It is denied that there is any attempt to dispose off and/or create third party rights and development rights. The Respondents understand that all the properties have already been sold/conveyed long back.

We have heard the Counsel and perused the material available on record.

6.1. We find that the Petitioners have alleged an act of oppression in the form of transfer of their entire shareholding in the Respondent Company by the Respondent No. 5 under fraudulent and forged documents, and removal of Petitioner No, 1 from the Board of the Respondent No. 1 company. It is alleged that these acts of transfer and removal took place somewhere in 2002, and the Petitioner is stated to have become aware of this transfer/removal in 2007. However, we notice that it is the case of Petitioner No. 1 himself that he had carried out an inspection of the Respondent  Company’s  records  maintained  with  Registrar  of Companies on 31st May, 2005, and found that his entire shareholding is shown to have been transferred to third persons and he is no longer a director of the Respondent Company. Even if, this Bench consider this to be the date of knowledge of alleged oppressive acts committed by the Respondent, the petition having been filed in 2010 is beyond the limitation period of 3 years. The Petitioner is stated to have filed a complaint on 26 September 2007 under Indian Penal Code, yet filed the present petition in 2010. This clearly shows that the petition suffers from delay & laches, and can not be maintained on the ground of limitation as well as delay & laches.

6.2. Further, it is noticed that there is dispute between the parties, the Respondents have stated to have filed a criminal complaint against Petitioner No. 1, which landed the Petitioners into the Jail. Also, the Petitioner No. 1 had conveyed to the State Bank of India about his dis-association with the Srivastava Group, of which the Respondent No. 1 is part of, way back in 2004. The issue of forged transfer is under investigation before the Police Authorities pursuant to complaint filed by the Petitioner No. 1 in 2007. These facts indicate that there is serious dispute in relation to the manner in which shares came to be transferred, and the fact of forgery is under investigation, accordingly we can not hold that there are circumstances warranting intervention from this Tribunal to order rectification of register of members for restoration of Petitioner’s name in terms of Section 111A of the Companies Act, 1956.

In view of the foregoing, TCP 33/2010 is disposed of as dismissed.